Court File and Parties

CITATION: Canadian Union of Public Employees Local 1999 v. Lakeridge Health Corporation, 2012 ONSC 2051

DIVISIONAL COURT FILE NOS.: 513/10 and 447/11

DATE: 20120531

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

SWINTON, HENNESSY AND HARVISON YOUNG JJ.

B E T W E E N:

Court File No.: 513/10

CANADIAN UNION OF PUBLIC EMPLOYEES LOCAL 1999 Applicant

• and - LAKERIDGE HEALTH CORPORATION AND THE PAY EQUITY HEARINGS TRIBUNAL Respondents

AND BETWEEN:

Mary Cornish and Janet Borowy, for the Applicant Michael Hines, for the Respondent Lakeridge Health Corporation Leonard Marvy, for the Respondent Pay Equity Hearings Tribunal Fay Faraday, for the Intervenor Equal Pay Coalition

Court File No. 447/11

CANADIAN UNION OF PUBLIC EMPLOYEES LOCAL 1734 Applicant

• and – YORK REGION DISTRICT SCHOOL BOARD AND THE PAY EQUITY HEARINGS TRIBUNAL Respondent

Mary Cornish and Janet Borowy, for the Applicant Roy C. Filion Q.C. and Roslyn McGilvery, for the Respondent York Region District School Board Leonard Marvy, for the Respondent Pay Equity Hearings Tribunal Fay Faraday, for the Intervenor Equal Pay Coalition

HEARD at TORONTO: February 27 and 28, 2012

Reasons for Decision

Swinton J.:

Overview

[1] These reasons deal with two applications for judicial review seeking to set aside decisions of the Pay Equity Hearings Tribunal (“the Tribunal”) dealing with compensation adjustments for wage grids of female job classes. In both cases, the Tribunal refused a union application to eliminate the different rates of progression through the wage grids of comparable male and female job classes, holding that the Pay Equity Act, R.S.O. 1990, c. P.7 (the “PEA” or the “Act”) does not require the harmonization of wage grids. As well, the Tribunal rejected an argument that the interpretation it adopted was contrary to the Human Rights Code, R.S.O. 1990, c. H. 19 (the “Code”).

[2] As the Tribunal’s decisions were reasonable, given the facts and the legislative scheme it was applying, I would dismiss the applications for judicial review.

The Statutory Framework

[3] The PEA is remedial legislation enacted “to redress systemic gender discrimination in compensation for work performed by employees in female job classes” (s. 4(1)).

[4] Systemic gender discrimination in compensation is identified by comparing female and male job classes in an establishment in terms of compensation and in terms of the value of the work performed (s. 4(2)). The PEA sets out a detailed process to be followed by employers covered by the legislation whereby they are to identify male and female job classes and to evaluate each job class in respect of a composite of skill, effort, responsibility and working conditions, using a gender neutral comparison system (ss. 5(1) and 12). They are then to compare compensation rates for the male and female job classes and make appropriate adjustments to female rates in order to achieve pay equity (see, for example, s. 13).

[5] Sections 5.1 and 6 prescribe when pay equity is achieved. Subsection 5.1(1) states:

For the purposes of this Act, pay equity is achieved in an establishment when every female job class in the establishment has been compared to a job class or job classes under the job-to-job method of comparison or the proportional value method of comparison and any adjustment to the job rate of each female job class that is indicated by the comparison has been made.

[6] Subsection 6(1) states when pay equity is achieved using the job-to-job method of evaluation:

For the purposes of this Act, pay equity is achieved under the job-to-job method of comparison when the job rate for the female job class that is the subject of the comparison is at least equal to the job rate for a male job class in the same establishment where the work performed in the two job classes is of equal or comparable value.

[7] The “job rate” is defined in s. 1(1) as “the highest rate of compensation for a job class”. A “job class” means “those positions in an establishment that have similar duties and responsibilities and require similar qualifications, are filled by similar recruiting procedures and have the same compensation schedule, salary grade or range of salary rates.”

[8] The PEA sets out detailed rules governing the timing of pay adjustments and the order in which they are to be made in an establishment. Subsection 9(1) prohibits an employer from reducing the compensation of any employee to achieve pay equity, while s. 9(3) deals with compensation adjustments in a job class:

Where, to achieve pay equity, it is necessary to increase the compensation for a job class, all positions in the job class shall receive the same adjustment in dollar terms.

[9] Subsection 7(1) of the PEA requires every employer to establish and maintain compensation practices that provide for pay equity in every establishment of the employer.

[10] Enforcement of the PEA can occur through a complaint to the Pay Equity Commission that the Act, a regulation or an order of the Pay Equity Commission has been violated (s. 22). Ultimately, the Tribunal has the authority to enforce the Act, including the power to order compensation adjustments for female job classes “in order to achieve pay equity” when the Tribunal has found a violation of s. 7(1) (see s. 25(2)(e)).

The Lakeridge Decision

[11] The Canadian Union of Public Employees, Local 1999 (“CUPE”) represents a bargaining unit of clerical/office employees and a unit of service employees employed by Lakeridge Health Corporation (“Lakeridge”). The two units are subject to a combined collective agreement.

[12] The majority of the employees in the clerical unit are female, and the majority of the job classes are female job classes, while the majority of employees and job classes in the service unit are male. The parties reached a Pay Equity Plan in 2006.

[13] The jobs in dispute in the present application for judicial review are 12 female job classes in the clerical unit that were compared to similarly valued male job classes in the service unit. The job rates (that is, the top rates) for these female and male job classes have been equalized.

[14] Each job class has a wage grid, whereby employees obtain increased wages in accordance with their length of service. Service unit employees move more quickly through the job grid than clerical unit employees. While a service unit employee may progress to the top of the pay scale after nine months of service, a clerical employee would not reach the maximum pay level on the grid until 24 months of service have been completed.

[15] CUPE takes the position that pay equity requires a change to the clerical unit’s wage grids in order to equalize the compensation of the female job classes with their male comparators in the service unit. In other words, CUPE argues that the PEA requires the compression of the wage grids of the female job classes, such that those employees can reach the maximum pay level in nine months.

[16] CUPE was unable to achieve such a change in the grid structures through collective bargaining and, therefore, made an application to the Tribunal. Relying on s. 7(1) of the PEA, CUPE sought an order that the wage grids for the female job classes must be adjusted to mirror the wage grids for the comparator male job classes and provide for the same rate of progression through the grids.

[17] On August 11, 2010, a three-person panel of the Tribunal chaired by Vice-Chair McKellar unanimously dismissed the application (Decision 1788-09-PE). The Tribunal characterized the dispute between the parties in the following terms (Reasons, at para. 20):

Where the parties disagree is on whether the Act requires the level of compensation and the rate of progression through a wage grid to be equalized for comparably-valued male and female job classes. The issue between the parties of necessity relates not to the analysis of whether pay equity (or its converse, gender discrimination in compensation) exists, but rather to the question of what adjustments the Act requires to be made.

[18] The Tribunal rejected CUPE’s argument that s. 7(1) requires the equalization of pay grids because it requires an employer to “establish and maintain compensation practices that provide for pay equity”. According to the Tribunal, the terms of the PEA define when pay equity is “achieved”. After citing ss. 5.1, 6, and 21.3(1) of the Act, the Tribunal concluded that pay equity is achieved by adjusting job rates – that is, by making adjustments to the highest rate of compensation in a job class (Reasons, at para. 24). The Tribunal also looked to the dictionary meaning of “achieve” and “achieved”, concluding that it meant a “goal attained”. Its conclusion was reinforced by s. 13 of the PEA, which sets out the requirements for pay equity adjustments.

[19] Ultimately, the Tribunal concluded (Reasons, at para. 27):

The Act consistently refers to the achievement of pay equity in terms of the adjustment of job rates despite the fact that it also contains both explicit and implicit acknowledgement that job classes may have more than one rate of compensation attached to them. There is explicit acknowledgement of this fact in the definition of what positions may comprise a “job class”: those with the same “compensation schedule, salary grade or range of salary rates.” The use of the adjustment of “job rates” as the measure for when pay equity is achieved must be considered as a deliberate choice. Clearly the Act might have provided that pay equity is achieved when the “compensation schedule, salary grade or range of salary rates” for the male and female job classes are equalized.

[20] The Tribunal also referred to s. 9(3), noting that this is the only section addressing adjustments for positions in a job class that are compensated below the job rate. Subsection 9(3) requires equal dollar adjustments for positions in the job class. In the Tribunal’s view, CUPE’s argument that s. 7(1) required the compression of the grids would make s. 9(3) redundant or in conflict with s. 7(1). The Tribunal refused to adopt this interpretation (Reasons, at para. 29).

[21] The Tribunal noted that CUPE had made brief reference to the Code and the Canadian Charter of Rights and Freedoms (the “Charter”), but concluded that the Code did not assist in this case. The Tribunal stated that the PEA provided a “comprehensive scheme for the redressing of systemic gender discrimination in compensation.” To accept the arguments based on the Code or Charter would be to assume “an inappropriate legislative role” (Reasons, at para. 31).

The York Region District School Board Decision

[22] CUPE brought an application for judicial review of the Lakeridge decision. Before the application was heard, the Tribunal issued Decision 1816-09-PE in a dispute between the Canadian Union of Public Employees, Local 1734 and York Region District School Board (the “School Board”).

[23] Local 1734 represents a unit of employees in clerical and technical classifications, the majority of whom are female. The School Board also has a collective bargaining relationship with CUPE’s Local 1196, a custodial unit comprised largely of male employees.

[24] The wage grids in the Local 1734 collective agreement were comprised of four steps, whereby employees would reach the maximum job rate at the end of three years. The wage grids in the Local 1196 collective agreement were comprised of three steps, whereby employees would reach the maximum job rate at the end of one year.

[25] The parties concluded a Pay Equity Plan on June 16, 1989, and the job rates for the female job classes were equalized with their male comparators. After Local 1196 negotiated an across-the-board wage increase that was higher than the general wage increase in the Local 1734 collective agreement, a wage differential occurred between the job rates for some of the female job classes and their male comparators. In 1995, the Tribunal ordered the School Board to regain pay equity for those female job classes. In response, the School Board adjusted all the rates of Local 1734 employees and provided the necessary retroactive payments.

[26] Starting in February 1995, Local 1734 asserted that its wage grid should be compressed to mirror the Local 1196 wage grid, eliminating the differences in the number of steps and the time to achieve the maximum rate. The School Board disagreed each time Local 1734 raised the issue. Ultimately, Local 1734 brought an application before the Tribunal.

[27] In a decision dated July 4, 2011, Vice-Chair McKellar, this time sitting alone as the Tribunal, rejected the argument of Local 1734 that the PEA required the wage grids of Locals 1734 and 1196 to be identical. She affirmed the decision in Lakeridge, and quoted extensively from the reasons in that decision.

[28] The Tribunal then considered the Code in greater detail than it had in Lakeridge, but rejected the argument that there had been a Code violation. Local 1734 argued that the differential wage grids violated s. 5(1) of the Code, the guarantee of equal treatment in employment without discrimination on the basis of sex. The Tribunal rejected CUPE’s argument that there had been a contravention of the Code, holding that the PEA provides a “complete scheme for ascertaining the presence of gender discrimination in employment compensation, and directing how compensation must be adjusted in the establishments where such discrimination exists” (Reasons, at para. 57).

[29] The Tribunal then held (at para. 58):

The Act is a measure designed to address pro-actively one specific aspect (rates of compensation) of what is encompassed by the Code’s guarantee of freedom from discrimination in employment on the basis of sex. It is an embodiment or manifestation of that guarantee. It is counter-intuitive to conceive of an employer who complies with its requirements as being in contravention of s. 5(1) of the Code.

[30] The Tribunal also held that the Act is akin to a “special program” within s. 14(1) of the Code. Subsection 14(1) reads:

A right under Part I is not infringed by the implementation of a special program designed to relieve hardship or economic disadvantage or to assist disadvantaged persons or groups to achieve or attempt to achieve equal opportunity or that is likely to contribute to the elimination of the infringement of rights under Part I.

[31] The Tribunal concluded that CUPE had not established that the PEA discriminates against employees in a female job class on the basis of sex, noting that the “same provisions for how compensation must be adjusted apply in respect of all female job classes” (Reasons, at para. 62).

[32] Finally, it held that CUPE was really challenging the language of the Act without raising a constitutional challenge. However, the Tribunal has no jurisdiction to amend the PEA (Reasons, at para. 63).

The Issues

[33] The following issues arise in the two applications for judicial review:

1. What are the appropriate standards of review for the Tribunal’s interpretation of s. 7(1) of the PEA and for the Tribunal’s decision that there had been no Code contravention?

2. Was the Tribunal’s interpretation of s. 7(1) of the PEA unreasonable?

3. Was the Tribunal’s decision that there had been no Code contravention unreasonable?

Was the Tribunal’s interpretation of s. 7(1) of the PEA unreasonable?

The Standard of Review

[34] All the parties agreed that a reasonableness standard of review applies to a decision of the Tribunal interpreting the PEA. The Tribunal is an expert body with extensive experience in applying a complex statutory scheme, and its decisions are protected by a strong privative clause. Accordingly, deference is owed to its interpretation of the PEA (Ontario Nurses’ Assn. v. Ontario (Pay Equity Hearings Tribunal) (1995), 1995 1488 (ON CA), 23 O.R. (3d) 43 (C.A.) at para. 46; Brant Haldimand-Norfolk Catholic District School Board v. Ontario Secondary School Teachers’ Federation, 2011 ONSC 1232, [2011] O.J. No. 1399 (Div. Ct.) at para. 22; Windsor Star v. Communications, Energy and Paperworkers Union, Local 517-G, 2011 ONSC 2816, [2011] O.J. No. 2375 (Div. Ct.) at para. 6).

The Reasonableness of the Decision

[35] CUPE Local 1999 and Local 1734 (the “Unions”) take the position that the Tribunal erred in failing to treat s. 7(1) of the Act as an overriding provision to ensure the elimination of systemic wage discrimination. Once again, that provision states:

Every employer shall establish and maintain compensation practices that provide for pay equity in every establishment of the employer.

[36] The Unions have given a number of examples of the serious negative effect on female workers flowing from the differential wage grids. For example, an individual holding the position of Health Records Clerk, working in a female job class, would earn $3,924.75 less over the first 24 months of employment than the incumbent of the Storekeeper Helper position, which is in a male job class.

[37] The Unions also rely on two reports that were submitted to the Tribunal in order to show that the elimination of unequal male and female wage grids is an integral part of the pay equity process (Pay Equity Task Force Final Report, Pay Equity: A Fundamental Human Right (2004); International Labour Office, Promoting Gender-Neutral Job Evaluation for Pay Equity (2008)). The Tribunal’s failure to make reference to either of these reports is said to be unreasonable.

[38] The two employers, Lakeridge and the School Board, submit that the decisions of the Tribunal were reasonable with respect to the application of s. 7(1) of the PEA, given the overall structure of the Act.

[39] In determining whether the decision of an administrative tribunal is reasonable, a reviewing court must begin with the reasons of the Tribunal (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para. 47). While the Unions take issue with the Tribunal’s approach to statutory interpretation in this case, the Tribunal was well aware that the PEA is remedial legislation, designed to redress systemic wage-based discrimination (see para. 22 of the Lakeridge Reasons).

[40] The Unions, through their counsel, stated a number of times in the factums and in oral argument that a fundamental objective of the PEA is to “eliminate” gender discrimination in compensation. However, it is more accurate to say that the purpose of the Act is to “redress” systemic wage discrimination in accordance with the detailed provisions of the legislative scheme. Within that legislative scheme, the Legislature has made a number of choices about how pay equity is to be achieved, as the Tribunal observed, with the result that the Act does not contemplate the elimination of all discrepancies between comparably-valued male and female job classes. For example, where there are two comparable male job classes, the required adjustment to the female job rate is to the male job class that is paid less (s. 6(3)). As well, s. 8 of the PEA allows certain exceptions.

[41] As the intervenor, the Equal Pay Coalition, observed in its factum, the PEA is not designed to eliminate all gender-based wage discrimination. For this reason, the intervenor took issue with the Tribunal’s statement that the Act is a comprehensive regime to address systemic gender discrimination in compensation and submits that there may be a role for the Code to deal with discrimination left unredressed by the PEA.

[42] The Unions argue that the Tribunal engaged in an unduly narrow and technical interpretation of the PEA. However, that is not a fair characterization of what the Tribunal did. The Tribunal could not and did not look at s. 7(1) in isolation. Rather, in accordance with proper principles of statutory interpretation, it was required to interpret s. 7(1) in the context of the PEA as a whole.

[43] The PEA does not define “pay equity”. However, it includes a number of provisions that deal with when pay equity is “achieved”. The Tribunal looked at all the relevant provisions, including ss. 5.1, 6(1) through (3), 9(3), 13(2) through (5), and 21.3(1), and concluded that pay equity is achieved when the job rates for male and female job classes have been adjusted in accordance with the Act. That was a reasonable conclusion.

[44] The Unions also argue that the Tribunal gave undue predominance to s. 9(3). In fact, the Tribunal reached its conclusion as to when pay equity is achieved on the basis of the sections to which I have just referred. It then went on to consider s. 9(3).

[45] Subsection 9(3) is part of the comprehensive scheme for pay equity adjustments, requiring equal dollar amounts for jobs below the maximum rate when adjustments are made to a wage grid. If the Unions were correct, and s. 7(1) requires the elimination of grid differentials between male and female job classes, s. 9(3) would be redundant, or there would be a conflict between ss. 7(1) and 9(3). Consequently, the Tribunal interpreted the provisions of the PEA so that they work together logically, in accordance with accepted principles of statutory interpretation.

[46] The Tribunal reached a reasonable decision, in light of the legislative scheme it had to interpret. Its reasons are clear and intelligible. The fact that it made no reference to the two reports submitted by the Unions does not render its decision unreasonable, as a tribunal need not refer to every argument and every piece of evidence placed before it (Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 at para. 16).

[47] Moreover, those reports would not assist the Tribunal in its task of interpreting the words of the Ontario statute. The federal Task Force Report is a policy document discussing issues relevant to the adoption of federal pay equity legislation. The International Labour Office document is a guide to be used when implementing the principle of equal remuneration for work of equal value. Neither assists in the interpretation of Ontario's Act.

[48] I note that the decision of the Tribunal here is consistent with an earlier decision of the Tribunal dealing with wage grids. In Glengarry Memorial Hospital v. Ontario Nurses’ Association (1992), 3 P.E.R. 34, [1992] O.P.E.D. No. 16, the Tribunal held that in order to achieve pay equity, s. 9(3) required employers to adjust each step of a wage grid in equal dollar amounts (at para. 21). The Tribunal found that the PEA does not require the harmonization of wage grids in order to achieve pay equity.

[49] The Glengarry decision was the subject of judicial review, although not on the issue of the wage grids (see the Ontario Nurses’ Assn. case cited above). In the present application for judicial review, the Unions relied on statements by the Ontario Court of Appeal in Ontario Nurses’ Assn. The issue before the Court was the Tribunal’s finding that the employer had to incorporate into its collective agreement a 37 cent wage increase (which had been ordered by the Tribunal), even though a negotiated wage increase caused the female job rate to exceed that of the male comparator. The Court of Appeal concluded that pursuant to s. 13(10) of the PEA, the pay equity plan prevailed over the collective agreement, as it was a “relevant collective agreement” under the Act.

[50] In the present application, the Unions seek to rely on words of the Court of Appeal in Ontario Nurses’ Assn. to the effect that s. 6(1) of the PEA is not “jurisdiction-limiting” (at p. 55), and that s. 6 sets out “the minimal requirement for the achievement of pay equity” (at p. 56). I note that these statements were made in the context of a discussion of the appropriate standard of review of decisions of the Tribunal. The Court of Appeal concluded that a standard of patent reasonableness should apply, given the specialized expertise of the Tribunal.

[51] To the extent that the Court of Appeal made comments on the interpretation of s. 6, it did so to show its disagreement with the approach of the Divisional Court to the interpretation of the section. Those comments should not be taken as a statement about the proper interpretation of s. 6, as the Court of Appeal made it clear that the Tribunal has the primary role in interpreting this legislation because of its specialized expertise. Moreover, the Court of Appeal did not discuss s. 7(1) of the PEA, on which the Unions relied in the present applications.

[52] In summary, the reasons of the Tribunal are intelligible and clearly justify the result reached. Its conclusion that the PEA does not require the harmonization of grids was reasonable, given the language of the legislation.

Was the Tribunal’s decision that there had been no Code contravention unreasonable?

The Issue

[53] Subsection 5(1) of the Code guarantees every person a right to equal treatment in employment without discrimination on the basis of sex.

[54] Subsection 47(2) of the Code ensures the primacy of the Code over other Ontario legislation. It states:

Where a provision in an Act or regulation purports to require or authorize conduct that is a contravention of Part I, this Act applies and prevails unless the Act or regulation specifically provides that it is to apply despite this Act.

[55] The Unions argue that the Tribunal’s interpretation of the PEA results in a violation of the Code and, therefore, s. 47(2) requires that the provisions of the Code prevail. I observe that it has not been altogether clear what the Unions claim is the exact violation. In oral argument before this Court, the Unions argued that the interpretation of s. 9(3) of the PEA constituted the violation, because it authorized the maintenance of unequal gendered wage grids. Elsewhere they suggest that the Tribunal’s reasoning sanctioned a violation of the Code by the employers (Factum in Lakeridge, paras. 65 and 69).

[56] An administrative tribunal that has the authority to decide questions of law has the jurisdiction to interpret and apply the Code in matters that are properly before it (Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14, [2006] 1 S.C.R. 513 at para. 14). In the present cases, the Tribunal accepted that it had the jurisdiction and obligation to apply the Code (see, for example, York Region District School Board Reasons at para. 54.).

The Standard of Review

[57] On the issue of the contravention of the Code, the Unions argue that the standard of review of correctness should apply, because the Tribunal was applying an external statute (the Code) and it was determining the jurisdiction between the Tribunal and the human rights regime (see Dunsmuir, above, paras. 59 and 60).

[58] The two employers and the Tribunal argued that the standard of review on this issue should be reasonableness, as the issue here is not a true question of jurisdiction or vires.

[59] I agree that the question of the application of the Code does not raise a true question of jurisdiction attracting the standard of correctness. Subsection 30(1) of the PEA confers the exclusive jurisdiction on the Tribunal to determine all questions of fact or law that arise in any matter before it. Given the holding in Tranchemontagne, the Tribunal had the jurisdiction to interpret and apply the Code in matters before it – here, in the context of a complaint that the employers had contravened s. 7(1) of the PEA.

[60] Moreover, this is not a case where the Tribunal is drawing jurisdictional lines between itself and the Human Rights Tribunal. The issue before the Pay Equity Hearings Tribunal was within its jurisdiction to determine – that is, whether its interpretation of the PEA required or authorized a contravention of the Code.

[61] The issue before the Tribunal was not one of central importance to the legal system that was outside the special expertise of the adjudicator. The Tribunal had to determine whether its interpretation of the PEA required or authorized a contravention of the Code. In deciding that issue, the Tribunal had to consider the interpretation of its home statute, as well as the Code. Deference is generally accorded to a tribunal in the interpretation of its home statute (Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654 at para. 39).

[62] The PEA is anti-discrimination legislation, as the Tribunal noted in the York Region District School Board decision (at para. 56). While the Tribunal does not have experience in applying the Code, its members do have expertise in the areas of human rights, employment and collective bargaining. As the Court of Appeal stated in Ontario Nurses’ Assn. (at p. 56):

One can infer from the extensive provisions of the Act setting out the requisite implementation strategies, that the achievement of pay equity (or the redress of discriminatory practices) is a highly specialized and integrative undertaking blending aspects of labour relations, compensation practices, employment law, and human rights.

[63] I note that labour arbitrators have been accorded deference when they interpret the Code in the context of a question of mixed fact and law (The Ottawa Hospital v. Ontario Public Service Employees Union, Local 464 (2009), 247 O.A.C. 201, 2009 9389 (Div. Ct.) at para. 9). Given the nature of the question before the Tribunal here and its expertise, the same deference should be accorded to the Tribunal. Therefore, the standard of review respecting the application of the Code to the pay equity issue before the Tribunal is reasonableness.

The Reasonableness of the Decision

[64] Lakeridge argued that it was inappropriate to deal with the Code contravention in this application for judicial review because the issue had not been squarely raised before the Tribunal. I need not deal with this argument, given my conclusion that the Tribunal reasonably rejected the arguments based on the primacy of the Code for the reasons it gave in the York District School Board decision.

[65] The Unions and the intervenor argue that the Tribunal erred in characterizing the PEA as a comprehensive scheme for addressing wage discrimination and in failing to consider the Code. The Unions cite the decision of the Quebec Human Rights Tribunal which found that unequal wage grids perpetuate systemic sex discrimination in employment (Québec (Commission des droits de la personne et des droits de la jeunesse) c. Université Laval (2000), 2000 3 (QC TDP), 38 CHRR D/301). In light of this jurisprudence, the Unions argue, the Tribunal must interpret ss. 6(1) and 9(3) of the PEA so as not to deny a remedy for systemic wage discrimination.

[66] I note that in the Quebec case, the tribunal was dealing with a complaint against an employer, the Université Laval, under the Quebec Charter of Human Rights and Freedoms, R.S.Q. c. C-12, which guarantees, in s. 19, a right to equal pay for equivalent work without discrimination. The Quebec tribunal was determining whether the university contravened the particular legislation by having different wage grids for male and female job classes.

[67] Here the Pay Equity Tribunal was not dealing with a comparable complaint under human rights legislation. Rather, it was dealing with complaints that the employers had contravened s. 7(1) of the PEA by failing to compress the female wage grids. The Tribunal held that there was no violation of the PEA. The remaining issue to determine was whether its interpretation of the PEA required or authorized a contravention of the Code, so that s. 47(2) of the Code would prevail over the words of the PEA.

[68] In my view, it reasonably concluded that the PEA did not require or authorize a contravention of the Code.

[69] The PEA requires the equalization of the job rates for female and male job classes of comparable value. There is nothing in the PEA that is discriminatory on its face. Moreover, the result of the Tribunal’s interpretation of the various provisions of the PEA in the present cases does not require any discriminatory act, nor does it authorize any such act. While the legislation may not eliminate all wage differentials between men and women in workplaces, that does not cause conflict between the Code and the PEA, as there was in Tranchemontagne. If there is an ongoing inequality in wages because of the unequal grids, that is an issue to be addressed independently under the Code.

[70] The intervenor has argued that the Tribunal’s interpretation of the PEA purports to “authorize” known pay gaps and has “allowed acknowledged inequality between female and male wage grids to persist” (Factum, para. 8). That is not what the Tribunal has done here. The Tribunal applied the PEA to require certain wage adjustments in accordance with the legislative scheme. The intervenor itself described that legislative scheme as an incomplete response to address wage discrimination. To the extent that these pay gaps persist, it is the result of the legislative policy choices made in the enactment of the pay equity legislation to provide a form of pay equity that does not result in the elimination of all differences in male and female compensation.

[71] The Unions and the intervenor have suggested that the Tribunal used s. 9(3) of the PEA to “cap adjustments” to wages. This seems to suggest that but for s. 9(3), other wage adjustments would be required under the PEA if s. 9(3) were held inapplicable. However, this argument fails to deal with the overall structure of the PEA and the Tribunal’s conclusions about what constitutes “achieving pay equity”. Absent s. 9(3), the PEA would not require compression of the wage grids; rather, it would limit pay adjustments to the job rates of female job classes.

[72] The Unions also argue that the Tribunal improperly characterized the PEA as “akin” to a special program within the meaning of s. 14(1) of the Code. The Tribunal did so because the PEA was enacted in order to benefit employees in female job classes whose work has been undervalued. Like a special program, it aims to achieve equality for a disadvantaged group. However, the Tribunal did not directly apply s. 14(1). At most, it used s. 14(1) by analogy to show that a program designed to assist disadvantaged groups may not be discriminatory.

[73] Both the Unions and the intervenor seem to assert that the Tribunal can and must adjudicate human rights claims that are independent of and collateral to legal issues arising under the PEA. As the intervenor stated in its factum at para. 29, “where compliance with a statutory provision produces a result (‘purports to require or authorize conduct’) that is contrary to the Code, the Code will again prevail.”

[74] I do not understand Tranchemontagne to go so far as to confer jurisdiction on the Tribunal to deal with human rights violations in general. In Tranchemontagne, the Supreme Court held that the Social Benefits Tribunal (“SBT”) of Ontario, in determining a claim for disability benefits, was required to determine whether a section of the Ontario Disability Support Program Act (“ODSPA”) was contrary to the Code. Although the ODSPA provided income support and benefits to eligible individuals with disabilities, s. 5(2) excluded those with an alcohol or drug addiction. The Supreme Court held that the SBT had the authority to apply s. 47(2) of the Code in order to decide if s. 5(2) of the ODSPA authorized or required a contravention of the Code.

[75] Thus, in Tranchemontagne, the SBT was required to deal with the Code contravention because it was necessary to consider the Code in order to determine the dispute before it – namely, whether the individual claimants were eligible for disability benefits (at paras. 50, 52).

[76] The role of the Pay Equity Hearings Tribunal is to deal with complaints of a contravention of the PEA, the regulations or an order of the Pay Equity Commission (s. 22(1)). Clearly, it has jurisdiction to apply the Code to the extent that human rights issues arise directly in a complaint properly before it. However, it does not have the authority to deal with stand- alone violations of the Code by employers.

[77] The Unions take issue with the Tribunal’s statement that it would be counterintuitive to conceive of an employer who complies with the PEA’s requirements as being in contravention of the Code. That was an observation by the Tribunal and not determinative of the issue. It may be that individual employees have a potential sex discrimination claim against their employers because of ongoing wage disparity caused by the grids. However, those claims should properly be brought before the Human Rights Tribunal on the basis of an alleged violation of the Code and a proper factual record (see Nishimura v. Ontario (Human Rights Commission) (1989), 1989 4317 (ON SC), 70 O.R. (2d) 347 (Div. Ct.) at 354).

[78] The intervenor argues that the Tribunal’s approach here will undermine access to justice for vulnerable employees. However, the Supreme Court of Canada’s concern about access to justice in Tranchemontagne arose because the claimants were already before the SBT with a claim under governing legislation that appeared to conflict with the Code. In order to deal with the merits of the claim, the SBT had to deal with the conflict with the Code by determining whether s. 5(2) of the ODSPA could apply. The SBT could apply the Code, in the administration of its home statute, by refusing to apply the discriminatory limitation and applying the remainder of the legislation.

[79] The PEA confers authority on the Tribunal to hear complaints relating to its implementation – for example, when and how pay equity is achieved. It does not confer authority to deal with complaints of sex discrimination under the Code unrelated to the implementation of pay equity.

[80] The Tribunal correctly, in my view, characterized the Unions’ argument as an attack on the underinclusiveness of the PEA – that is, a complaint that the PEA does not do enough to eliminate gender-based wage discrimination. Clearly, the Legislature, in enacting the PEA, made a number of policy decisions about the way in which to achieve pay equity, enacting legislation that does not eliminate all systemic wage discrimination. As a result, the PEA may be vulnerable to a challenge under s. 15 of the Charter because of that underinclusiveness. However, the Unions have failed to identify a provision of the PEA that is in conflict with the Code. As in Malkowski v. Ontario (Human Rights Commission) (2006), 2006 43415 (ON SCDC), 55 Admin. L.R. (4th) 311, [2006] O.J. No. 5140 (Div. Ct.) at paras. 31 and 38, the Unions are seeking to use s. 47(2) of the Code to change the pay equity legislation and extend its reach. However, s. 47(2) does not authorize a tribunal to read words into a statute or amend it to ensure compliance with the Code.

[81] In sum, the Tribunal’s decision that its interpretation of the PEA did not authorize or require a contravention of the Code is not only reasonable; in my view, it is also correct.

Conclusion

[82] For these reasons, the applications for judicial review are dismissed.

[83] It is understood that the Tribunal does not seek costs. The intervenor does not seek costs nor can costs be ordered against it, given the terms of the order granting intervenor status.

[84] If the other parties cannot agree on costs, the respondents may make brief written submissions through the Divisional Court Office within 21 days of the release of these reasons, and the applicants may respond within 10 days thereafter.

Swinton J.

Hennessy J.

Harvison Young J.

Released: May 31, 2012